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Thursday, 17 February 2000
Page: 13807


Mr KERR (4:39 PM) —This is an example of the worst form of government decision making, resulting in legislation which really is inadequate to the task that is required of this parliament. The Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill contains a number of important provisions and a number of draconian and quite uncalled for measures. It was introduced into this parliament on 24 November last year. The government then pressed the case upon us on 6 December that there was urgency in the passage of this package of legislation because it contained within it measures which were necessary in the lead-up to the Olympics to criminalise the import into Australia of some performance enhancing drugs. We sought at that time to find a solution to the urgency of those provisions. Unfortunately we failed when we insisted that the legislation, because it contained not merely those provisions but a raft of other measures, have some scrutiny by this parliament.

The scrutiny that it has received to date has been the scrutiny of the Senate committee. Naturally, the time frame that has been allowed, with the Senate committee calling for submissions late in December and ensuring that the report of its findings could be available for the commencement of this sitting, has inevitably meant that measures which normally would have attracted significant public attention, particularly in relation to civil liberties matters, have not had the scrutiny that one would expect of them. The fact that there are only three speakers on the list in relation to this legislation really belies the importance of this legislation. It is actually some of the most significant legislation that this parliament has had before it. The time frame in which this parliament has been given the opportunity to look at this legislation and the innocuous name of the measure—Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill—hardly do justice to what it contains.

The opposition is very concerned about the provisions in this legislation. It contains significantly increased penalties for a range of import and export offences, including custodial offences. It includes increased Customs powers to conduct external personal searches by use of new technology, for example ion scanning, and for the videotaping of those searches. It includes powers of arrest to cover the new offences. It extends the period for which Customs may retain seized goods, principally of an evidential nature. It gives Customs officers the power to open postal items without the supervision of Australia Post. It makes some technical arrangements in relation to the appointment of the chief executive officer of Customs. So what we have here, in a sense, is a mix of measures, some obviously requiring our urgent attention, others of a simple administrative nature and yet others of a complexity and significance in terms of their civil liberties implications which cannot be done justice in the time frame that has been allowed for these matters.

I am contemptuous of this government for the way in which it has dealt with the introduction of this legislation. It is not as if the fact that Sydney is holding the Olympic Games in the year 2000 is a matter which might have suddenly come to mind late last year. When I was Minister for Justice, contingency plans were on foot at that time for security and other arrangements in relation to the pending Olympic Games, and I attended planning meetings in relation to that. Those responsible for policing the intention of having a drug-free Olympics have been publicly calling on this government for well over two years to address some of the matters that this legislation deals with. So to find ourselves in a position where essentially the government has, at the last minute, cobbled together a package of legislation that includes those provisions relating to sports drugs but tacks them onto a whole range of other measures which do not get the proper scrutiny of this parliament—and will not get proper scrutiny—is a matter for which I have the greatest contempt.

I turn to the provisions of this legislation. The opposition believes it is vital that the legislative approach to the importation of illicit drugs is consistent and appropriate, and this legislation is far from that. It has all the smell of cobbled together, knee-jerk legislation based on an approach to illicit drugs with respect to which this government has so misled the Australian community. It has a consistency with the war on drugs rhetoric, which is misguided, misplaced and out of step with what is really going on in the Australian community. We are concerned that the increases in penalties that are proposed in this bill have no coherent foundation whatsoever and are likely—as, for example, with mandatory sentencing in the Northern Territory and other instances where people throw together pieces of legislation in order to address what they see as a perceived public concern about certain matters—to have quite severe unintended consequences.

Take a couple of instances. Currently, the penalty for bringing 100 grams of cannabis into Australia is a fine of $4,000. Some might say that is far too low. By contrast, in the ACT, for example, the penalty for possession of 100 grams of cannabis or less is $100. Here, where we stand in parliament, if a person living in the ACT were convicted of possession of cannabis, the penalty for possession of 100 grams or less would be $100. In South Australia you are entitled, under an administrative offence, to grow up to three cannabis plants. In this bill, anyone stupid enough to travel to Australia with 100 grams of cannabis, which in the old measurement is about three ounces, will find themselves liable to the new penalties not of $4,000 but of $250,000 or 10 years imprisonment. What we have here is reefer madness. It is an extraordinary situation. There have been a range of measures with no public discussion, no examination of the task forces that have been established in relation to drug policies and no evaluation by expert groups. None of those issues has been canvassed in a larger domain. They have been swept up with legislation dealing with sports drugs and introduced to this parliament with no proper public exposure or consideration.

That is just one example of the measures in this legislation which we, as an opposition, have great concerns with. We do not resile from the approach that serious importations of drugs are serious matters and must be dealt with seriously, but we have great concerns that we have moved from coherent and responsive policy making to knee-jerk, ad hoc and unthought through responses which will not be effective in protecting the Australian community or safeguarding the interests of Australian citizens. I will return to this theme at a later stage because we do propose to move, in respect of these matters, a second reading amendment which expresses the opposition's concern in relation to these larger issues.

I want to go to some further technical points that concern the opposition. I might say that we have had some constructive discussions with the government and its advisers in the last couple of days. I understand that some of the matters upon which we have expressed concern will be the subject of government amendments. We will certainly be moving opposition amendments at the consideration in detail stage, but I am very pleased to acknowledge and welcome the undertakings we have received that the government will be moving further amendments in the Senate, for example, with respect to the way in which any search using the new technologies might be conducted and the right of people to refuse that if they are fearful or concerned about what might happen by way of medical risks they might incur and other matters of that nature.

There is one matter of particular concern upon which we could not agree, and I find it extraordinary. It is in relation to the proposal in this legislation that officers of the Customs Service no longer need to ask Australia Post to open private mail that they search as it comes through mail exchanges. Under the current arrangement, Customs officers who find suspicious postal items have to have them opened by Australia Post officers. The Customs Legislation Amendment (Criminal Sanctions and other Measures) Bill 1999 proposes removing that safeguard. Removing a safeguard that demands the presence of an Australia Post official will leave a vacuum. It means that one Customs officer can open any piece of mail sent into Australia or through the postal exchanges without having to present it to the Australia Post officials to open it on their behalf, which is the current arrangement. It is not much of a safeguard that exists presently, but it does mean that the opportunity for two things is very constrained. The first of those two things is the opportunity for that Customs officer to see some mail sent by somebody they know, to open that mail, to read whatever is in it and then to return it—certainly with a sticker saying it has been opened but to return it. That opportunity will now exist. Secondly, it must be the case that, if you have law enforcement officials—and Customs officers in this regard are acting as law enforcement officers—acting without supervision, the prospect of framing people is enhanced. It could easily facilitate corrupt practices.

There really are serious reasons to be concerned about the propriety of allowing Customs officers to open or to read private letters without proper checks and balances. To pretend that abuses of these kinds of powers do not exist is totally naïve. We know, for example, that within state police forces it has happened quite frequently that those who have charge of the motor registry have been willing to use that access to find out information about girlfriends or about people they want to trace, or to provide that information to private investigators or the like. So a regime has come into place because of that. But we do not have the safeguards here. We will have a situation quite unlike any other private communication that we protect. Even the Australian Federal Police and ASIO are not allowed to intercept phone calls or electronic communications without a warrant. Yet here we have essentially this government proposing legislation that does not require judicial authorisation or any second person to be present in relation to the opening of our private mail. That is an extraordinary situation. It is akin to the kinds of regimes you might find in a police state.

Certainly I do not mean any malice towards Customs officers, the vast majority of whom I am certain approach their tasks with the greatest of respect for the legal framework in which they are supposed to operate. But to pretend that, in an organisation of the size of Customs, there are not some people who will abuse this is just silly. That is why we have checks and balances, just as we have checks and balances for the Australian Federal Police, for the National Crime Authority, for ASIO and for every other agency that has a law enforcement function which entitles it to intrude on our personal privacy. So why is it now that the only agency that will exist in Australia that has no responsibility either to seek judicial authorisation or to require some oversight, some checking, will be the agency which can rifle through our mail? Personally, I find it quite offensive that somebody might select a letter I had been sent or had sent to somebody and extract that from the mail, yet not be subject to the kinds of safeguards that presently exist. There is not much of a safeguard, as I say, but at least there is a safeguard. It is pretty hard to imagine that there will be ongoing collusion between an Australia Post officer who will have to open the mail and the Customs officer who will come there from time to time to check whether there may be some suspicious articles. Certainly it might happen once or twice, but it will not happen on an ongoing basis. They will move; they will change. But it can happen if you have unsupervised officers proceeding in this way. It is a fundamental violation of the kinds of safeguards that we have insisted on in legislation after legislation in this parliament. And I am amazed that this government still proposes to proceed in this way.

To return to the larger concern, the first point I make is that we do accept that there is some urgency in dealing with the sports drugs issue. We wish it were not so. This legislation should have been before this parliament two years ago. We could have had a proper look at it and had a bit of a think about what we are actually doing. There are some big public policy issues here that we really have not had a chance to reflect upon. There is, for example, the degree to which we should criminalise, by the state, those who wish to use steroids. It is a bad thing to use steroids; it is probably bad for your health. Lots of these drugs are available without prescription in other countries. What is the degree to which we want to impose severe and draconian penalties upon large numbers of our fellow citizens, to make criminal actions which hitherto have been the subject of warnings and concern but not the sorts of penalties that we are talking about here—really severe penalties: years in gaol, hundreds of thousands of dollars of fines—when we do know there is a very large user group already, although we are not sure how large? Are we trying to operate on the basis that everyone in these situations is suddenly a major threat to national security? What expectations have we placed on sporting organisations, for example, to play their part in terms of a regime that asks them to undertake proper checks? How far is the balance properly set? Increasingly we are moving down this path of criminalising behaviour that is indulged in by many hundreds of thousands, if not millions, of Australian citizens. Come back to that: hundreds of thousands or millions of Australian citizens.

I have received, for example—leaked at this stage, but I understand it is to be presented later next month—the Australian Illicit Drug Report which shows that, since the launch of the Prime Minister's National Illicit Drugs Strategy comprising no less than 10 committees and costing $295 million, illicit drug use in Australia has actually risen, and 40 per cent of the population over 14 years of age have tried cannabis at least once in their lives. Forty per cent is several millions of Australians. At least 400,000 people have used amphetamines in the last 12 months. The abuse of prescription drugs, of course, is continuing to increase, and the greatest health risks that we still face as a community come from the abuse of tobacco and alcohol. We still face escalating heroin deaths and the increasing availability of and reduction in the price of heroin.

This brings us to a very large question which really requires us to have some thought about where we as a nation are leading ourselves. How far are we seeking to move to the American model where over two million Americans are in jail—60 per cent for exclusively drug offences? We have to think through the consistency of an approach which says that, if you live in the ACT and you have 100 grams of cannabis, you can be fined $100. If you are stupid and go overseas to, for example, the United States or for a holiday to South-East Asia and you think, `I couldn't find my 100 grams in Australia; I will bring it back. I will stick it in my pocket or hide it internally'—as people do—and then you get caught, you will get a minor slap on the wrist in the ACT.

What is a Federal Court judge or magistrate going to do when they are faced with that person and the penalty that they are then asked to impose treats that person as a trafficker—what sort of trafficker brings in three ounces of cannabis?—and presents them with the possible imposition of a fine of $250,000 or 10 years in imprisonment? The range of penalties is becoming more and more bizarre. We need to get a serious grip on what kind of society we are seeking to move towards. Some people have made the obvious point that we are starting to develop a perverse symbiotic relationship between the state and the market and the rapid global growth in some forms of crime, particularly drug trafficking. Susan Strange has written a book called The Retreat of the State. She says that a key factor in the growth of organised crime has been the policies of national governments. She says:

Demand from the consumers in the market has always been one side of the coin when it comes to the profits of organised crime. The other side has been the role of the state. Profitability is always increased when a trade in goods and services is declared illegal. This has been true of gambling, prostitution, alcohol, guns, pornography and, of course, drugs. Barriers to entry are raised because risk is increased and the means to manage or reduce the risk are not available to all. A monopoly rent results for the supplier. It is hardly surprising that organised criminal gangs, like other transnational enterprises, have seen new opportunities for profit in diversifying their activities.

Only recently has there started to be a serious discussion about the implications of how we deal with transnational crime. The leading literature on this is a book called The Illicit Global Economy and State Power. In it, Peter Andreas describes what is happening as a simultaneous tearing down and building up of the state regulatory apparatus, the creation of a minimalist state in regulating the legal economy and a maximalist state in regulating the illegal drug economy. Coming back to what Susan Strange said, she points out:

In recent years the majority of governments have taken two intrinsically conflicting decisions on the possession and sale of drugs and on the financial transactions through the banking system involving clean and dirty money. The first has been declared to be on the wrong side of the law. The second has been tacitly admitted to be on the right side in as much as only the most feeble attempts have been made to make the banks responsible as criminal accessories to the laundering of money acquired by criminal activities, whether bribes, robbery or illegal trafficking. The contradiction between the two decisions, that selling drugs is illegal but handling the proceeds of the trade is not, is putting the entire system of state authority at risk.

We are confronted by this because we still have inordinately weak provisions in relation to money laundering. We do not have a civil forfeiture regime in this area. The Mr Bigs are able to skate through the system relatively effectively, notwithstanding ever increasing amounts of seizures. Of course there are ever increasing amounts of seizures. If you read the report on the availability of illicit drugs you will know that there is so much of it out there that there are bound to be increasing amounts of seizures. So the Mr Bigs skate through.

Forfeiture provisions aimed at those who are actually commercially trafficking in drugs and which would hit people where it hurts have not been put in place. But we have this mad knee-jerk response of criminalisationthe maximalisation of criminal behaviour, where the citizen can find himself in jail for years and years for acts which are common in our community. This I find to be completely bizarre. If the intention of this government or the international community in pursuing this course was to reduce the availability of drugs, it has been an abysmal failure. I will quote in relation to the information:

Since the 1970s, annual heroin seizures have increased from just over one to more than 21 metric tonnes internationally; cocaine seizures have increased from two to over 300 metric tonnes, while those of cannabis, from 2,000 tonnes in the early 1970s, reached the record figures of 53,000 tonnes in 1987.

Assuming in the long run that you have roughly the same amount of seizures of the stock, you are getting massive increases in the volume of drugs being traded illegally. Currently the illicit drug trade is valued at over $500 billion a year, and it continues to grow. The US Drug Enforcement Agency estimated that in the early 1990s Mexico earned more than $7 billion a year from the drug trade, making it a leading, if not the leading, generator of foreign exchange in Mexico. In 1999last yearin Australia a study estimated that the illicit market for cannabis in this country was worth more than $5 billiona country reputed for hard drinking amazingly generating more than twice the amount spent on wine. So, if it was meant to reduce utilisation and use, it has been a failure. But, if it was meant to minimise harm, it has been a worse failure.

We still see the overfocus on prohibition. These new knee-jerk responses are increasingly leading us to send messages to users that are not believed. We cannot get across effective health education and social messages. We do not develop programs. We run away from needle exchanges. We throw up our hands in horror. We do not deal with the fact that people in our community are dying. We run away from those issues—the realistic and sensible things that can be done practically—and we overfocus on a war on drugs, which all the evidence shows has been a gift to the marketers of drugs. If ever there was a serious campaign for decriminalisation, which Strange puts up as the alternative for the increasingly repressive policies at a state level, I bet I know who would be funding that campaign against decriminalisation. It would be those who now profit from it. Of course they would, because it is their monopoly rents that the state, by way of these mechanisms, is increasingly feeding, giving them comfort in ensuring that they have a substantial and significant market for what they are undertaking. As Strange says, the internationalisation of this means that an effective war on drugs requires global cooperation to implement repressive policies and the transfer of law enforcement responsibilities from the national to the international level.

I do not know how far we want to go down these paths, but I am starting to become extremely worried about how the government is moving in relation to these matters. To treat the millions and millions of Australians that they know perhaps stupidly or unwisely or unhealthily and certainly illegally engage in these practices as if they are all fit to go to jailas the United States has done, filling their jails with these people and creating a massive social cost with no sense of reducing the availability or supply of drugs in that country or in any other state where these practices have been attempted—seems to me to be a practice doomed to failure. So we need to have a serious think about where we are going on this, particularly when we start to expand the net to include not only heroin, cocaine and everything else that we are naturally concerned about but also steroids, non-prescription drugs and various other things that we know many in the community have used and abused. It is bad to deal with these issues without education or health messages and the like, to criminalise and bundle them in together—as this legislation has done—without a proper debate or a forum for it. We propose a second reading amendment which should be debated and discussed in a serious way by this House's committee. I move:

That all words after “That” be omitted with a view to substituting the following words:

whilst not declining to give the Bill a second reading, the House:

(1) calls for an approach to illicit drug use which acknowledges that law enforcement alone cannot be a sufficient response to the health and social problems that confront us as a society in relation to illicit drugs, and policy makers and the community must focus on the effects of drug use on youth, and on developing harm minimisation strategies;

(2) is of the opinion that the Bill is a misguided response to the issue of illicit drugs in Australia, as the `war on drugs' rhetoric is misguided, misplaced and out of step with what is really going on in the Australian community;

(3) is concerned that the increases in penalties contained in the Bill, have no coherent foundation and may lead to unintended and grossly unfair consequences; and

(4) whilst accepting that there are sound public policy reasons in the lead up to the Sydney 2000 Olympic Games to support special measures to prohibit the importation of performance enhancing drugs, notes that there has been inadequate public consultation in the development of these measures and the other penalty measures in the legislation, and calls on the Government to refer these issues to the House of Representatives Standing Committee on Legal and Constitutional Affairs for a comprehensive review after the Sydney 2000 Games have concluded.


Mr DEPUTY SPEAKER (Mr Nehl)—Is the amendment seconded?


Mr Kelvin Thomson —I second the amendment and reserve my right to speak.